In the last ten days two men have died in or following Garda detention. On Saturday Johnny Nevin (39) of Tipperary was detained in Templemore Garda Station, became unwell and was transferred to Nenagh Hospital, where he died. On the 20 April a 39 year-old man was found dead in his cell in Tallaght Garda Station. Both deaths are now being investigated by the Garda Ombudsman Commission under s.102 of the Garda Siochana Act 2005.
The circumstances and causes of these deaths are not known and we should be careful to avoid speculation at this point until the investigations have been completed. There is no suggestion as yet that either man was injured by Gardaí. That said, that two men in their thirties should die in or following Garda custody sould be of grave concern to all. For the time that they were detained they were in the care of the State. As the UK Joint Committee on Human Rights stated in its report on deaths in custody:
When the state takes away a person’s liberty, it assumes full responsibility for protecting their human rights. The most fundamental of these is the right to life.
In addition to the right to life protected under Article 2 of the European Convention on Human Rights, there are also protections against torture, ill-treatment, inhuman and degrading treatment, the right to privacy and the freedom from discrimination. The duty under Article 2 entails a positive duty to safeguard life, which requires not only that states take positive steps to protect the lives of individuals whose lives are at risk but also to adequately investigate any instances of deaths in custody. There is ample case law from the European Court on the right to life and it makes clear that, for instance, if a person is at a heightened risk, even where the threat eminates from themselves, the obligation on the State is even higher (see Keenan v. UK).
Little work has been done on deaths in custody in Ireland though names like Terrence Wheelock and Peter Matthews will be familiar to many (we’ve posted about Mr Wheelock’s death here, here and here). That two men should die in/following garda custody demands the most serious of attention, and the most serious of questions to be asked of the system – including why were they in custody? should they have been there? did the gardai assault either individual? were there any medical conditions at the time of the arrest? were the individuals supervised appropriately at the station? what was the response of officers at the station on realisation of the illness/death of the individual?
At the heart of this issue is the harsh reality of the status of people detained, which the Joint Committee on Human Rights expanded on:
…the majority of people entering custody are extremely vulnerable individuals. Many of those who die in custody are young. Most of those who die are vulnerable or sick, with histories of mental illness and drug and alcohol problems. It must be recognised that by taking people into custody the state takes upon itself a particular duty of care, because of their vulnerability, and a special responsibility to ensure their protection and to uphold their human rights… The multiple vulnerabilities of the people detained, the acute need for medical treatment and drug and alcohol detoxification facilities, low educational achievement and poor communication skills, and the high rate of mental illness, are all found to a greater or lesser extent in all forms of state detention.
This unfortunate reality enhances the need for every precaution to be taken when an individual is detained. It is suggested that these two deaths should prompt either GSOC or the Garda Inspectorate to conduct an investigation into this issue as it affects detention in Irish police stations. Two deaths in one week, a week in which the Governor of the Dochas Centre has resigned, due in part to the conditions in the prison, should be ringing the loudest of alarm bells in terms of the treatment of persons in detention centres in Ireland. Of great dissappointment is that, from the media reports, the GRA conference this week (which I will review tomorrow) has failed to address this issue.
Indefinite inclusion on the Sexual Offences Register – R and Thompson v Secretary of State for the Home Department
In R and Thompson v Secretary of State for the Home Department the UK Supreme Court upheld the decisions of the Divisional Court and the Court of Appeal that inclusion on the Sexual Offences Register for the duration of an offender’s life was in breach of the ECHR. Statutory notification requirements for sex offenders were first introduced in the UK by section 1(3) of the Sex Offenders Act 1997, later amended by the Criminal Justice and Courts Services Act 2000. These provisions were repealed, and now, section 82 of the Sexual Offences Act 2003 imposes a duty on anyone sentenced to 30 months’ imprisonment or more for a sexual offence to notify the police of where they live and of any travel abroad. There is no right to a review of these notification requirements, and they endure for “an indefinite period”, as the Act terms it, which is essentially the remainder of a person’s life.
The respondents, R and Thompson, sought judicial review, contending that such absence of a right of review breached their right to privacy protected by Article 8 of the ECHR. In the Supreme Court, Lord Phillips emphasised that the core of the case was whether the interference with offenders’ Article 8 rights is proportionate, given the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. He focused on three questions: “(i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) To what extent would that value be eroded if the notification requirements were made subject to review?” (para. 41).
He acknowledged the necessity for the authorities to be aware of the location of persons convicted of sexual offences that are being actively managed or supervised, noting that this level of supervision is determined, in part, by the risk of reoffending they pose (para. 45). When a person is subject to lifetime notification requirements but no longer poses any significant risk of committing further sexual offences and this is demonstrably the case, Lord Philips felt it would be pointless to maintain notification requirements given the incursions on Article 8, and indeed from a pragmatic sense felt it overburdened the responsible authorities (para. 51). This is an interesting and logical mix of principled and practical argument. Lord Phillips, at para. 57, concluded that “there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified.” He emphasised the viability of review in other jurisdictions, including Ireland, and noted that “This does not suggest that the review exercise is not practicable.”
In Ireland, s 8(3)(a) of the Sex Offenders Act 2001 requires notification for “an indefinite duration” if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life or for more than two years, but s 11(1) allows for a court application to discharge this obligation on the ground that the interests of the common good are no longer served by his or her continuing to be subject to them. However, such an application cannot be made before the expiration of ten years from the date of the person’s release from prison.
Despite some predictable media coverage (see the Sun, “Rapists win new legal rights”), the decision is narrow in scope, and concerns the lack of review only rather than compromising the legitimacy or legality of the Register itself. Indeed, Lord Rodger emphasised that he saw “no basis for saying that, in themselves, the notification requirements, including those relating to travel, are a disproportionate interference with the offenders’ article 8 rights to respect for their family life, having regard to the important and legitimate aim of preventing sexual offending” (para. 64).
Some weeks ago (on Good Friday, in fact) a 15-year old boy was killed in Tyrellstown, Co Dublin. Toyoshi Shittabey was walking home from the swimming pool when, it is reported, he and a friend were subjected to a racist verbal assault. It has been reported that while Shittabey and his friend walked away from the scene, the assailants went to a house, acquired a knife, followed the youngsters to their car, and stabbed Shittabey in the heart. The Gardaí have charged one young man with manslaughter. Although there has been a huge public outpouring of grief and solidarity with the family of Toyoshi Shittabey and with the Nigerian community in Tyrellstown in the wake of the stabbing, this murder exposes potentially deep racial fault-lines in Irish society and poses difficult but important challenges for the Gardaí. It also poses difficult questions for the criminal law in this jurisdiction.
The Gardaí’s investigation has not officially ended, and it is possible that the final charge will in fact be murder and not manslaughter, but the investigation of this crime takes place within a palpable atmosphere of racial tension and poses challenges that one hopes the Gardaí will be able to face. Should it come to that point, the sentencing process will also be challenging for the court. If it is established in the course of the trial (whether that is a trial for manslaughter or for murder) that this homicide was racially motivated, ought that to be taken in to account in the sentencing decision? We previously discussed the lack of hate crimes legislation in Ireland here, and this may well be a case that helps us to gauge how well our criminal justice system can calculate prejudice in sentencing without specific law in this relation. However, the killing of Toyoshi Shittabey is not only a challenge for the Gardaí and the Courts; it is a challenge for Irish society in and beyond Tyrellstown. Read more…
The Association of Garda Superintendents held their annual conference yesterday and the issue of the use of the Special Criminal Court was discussed. Supt Jim Smith, President of the Association, called for greater use of the Special Criminal Court in gangland cases for fear of jury intimidation. He referred in particular to a recent incident where lists with the names and addresses of jury members were found during a search on the home of an associate of a leading gangland criminal. In this special post Vicky Conway and Fergal Davis explore the pros and cons of this suggestion.
Vicky Conway writes:
The case referred to at the AGS conference yesterday and the finding of a list of jurors’ names is indeed a very worrying development. On the back of this the Association expressed the view that the [non-jury] Special Criminal Court could be used more and thereby negate the danger to jurors.
By way of background the Criminal Justice (Amendment) Act 2009 scheduled a number of organised crime offences, meaning that they must be tried before the Special Criminal Court. The DPP retains the power to direct any other offence to the Special Criminal if he feels the ordinary courts ‘are unable to secure the effective administration of justice.’
The use of the Special Criminal Court is controversial in Ireland, both because of the denial of the right to trial by jury and because it has now existed in Ireland on an emergency basis, without regulating legislation, for close to 40 years. International bodies such as the UN have expressed concern at its continued existence given the Peace Process in Northern Ireland. It must of course be conceeded that when real threats are posed to jurors questions must be asked about the operation of the jury system, but that should not automatically mean that in non-emergency situations we deny citizens of this State their rights.
In the context of the facts as recounted yesterday (re a list of names and addresses being found in a criminal’s home) the appeal of the Special Criminal Court is great. However, this author would urge caution before coming to that conclusion. An investigation into how those lists came into that person’s hands must be conducted swiftly. The regulations around who has access to those lists then need to be reconsidered. In response to AGS’s statement yesterday the Minister for Justice stated that at present defence lawyers have access to these lists as they are entitled to know whether neighbours or friends are on the panel. This could clearly be tightened up and such checks could be performed independently. This is perhaps symptomatic of the general situation, whereby the Special Criminal Court is resorted to when other action could be taken to protect jurors.
Fergal Davis writes:
The Association of Garda Superintendents has advocated broader use of the Special Criminal Court. To the best of my knowledge they made no mention of my previous post on the subject but we live in hope.
The use of the Special Criminal Court in “gangland” cases is not as clear cut as might at first be assumed. A kneejerk rejection of non-jury trial would be foolish. The Special Criminal Court is constitutionally and legislatively anticipated by Article 38.3.1˚ of Bunreacht na hÉireann and S.35(2) of the Offences Against the State Act 1939 which determines that the court may hear cases where ‘the ordinary courts are inadequate’. Where a substantial risk of jury intimidation exists the ordinary courts are inadequate. If a criminal organisation, whether that be a terrorist organisation or a criminal gang, can obtain a list of names and addresses of juror members this gives rise to concerns about the protection afforded by the State to those jurors. Such a situation results in three problems:
- The State owes a duty of care to jurors whom they have placed in a position of danger. If the State cannot guarantee their security it should not ask individual citizens to fulfill this role.
- As Lord Diplock has observed, ‘a frightened juror is a bad juror even though his own safety and that of his family may not actually be at risk’. (INQUIRY INTO LEGISLATION AGAINST TERRORISM, 1996, Cm. 3420) If jurors believe that their details might not be secure this perception could understandably alarm juries and undermine their ability to function effectively.
- The Special Criminal Court has been used in non-subversive cases since 1942. The Court was used to try Black market offences during ‘the Emergency’ when it was believed by the then Attorney General (and future President) Cearbhall Ó’Dálaigh that while swift and severe punishment was required in cases of rationing offences juries would be unwilling to convict (Fergal Davis (2007) The history & development of the Special Criminal Court, pp 96-99).
So, there is precedent and possible justification for utilising this ‘extraordinary’ court. Furthermore, although the use of juries is to be valued because it
…always retains a republican character in that it entrusts the actual control of society into the hands of the ruled, or some of them, rather than into those of the rulers… (Alexis de Tocqueville, Democracy in America, trans. GE Bevan (2003) pp 317-18)
This does not, in and of itself justify the use of juries where such use would entrust the control of society to those criminals who can exercise some control over the jury.
On the other hand, there is no need to throw the baby out with the bath water. The Special Criminal Courts may be justified but this does not mean we ought to employ it at the drop of a hat. The jury – as an institution – has much to commend it. Juries add legitimacy to the decisions of courts precisely because they involve the governed in the process of governing. If they can function they ought to function and so, before resorting to the Special Criminal Court we should first consider other means through which we could strengthen the jury system – being more selective in the information we release regarding jury panels might be a less intrusive means of resolving this problem. But in the final analysis if trial by jury is unable to deliver a fair trial then we should be willing to set it aside and the Special Criminal Court provides a ready alternative.
The Crime and Security Act 2010, amending the scheme of DNA retention in England and Wales, was given royal assent earlier this month. Following from the decision in S and Marper v UK, as previously blogged about here and here, the UK was forced to revise its scheme of DNA retention in England and Wales.
The S and Marper decision prompted a lengthy consultation process by the Home Office, characterised by a reluctance to amend the law relating to the scope of the database. The consultation paper, Keeping the right people on the database: Science and public protection , ostensibly aimed “to provide a proportionate balance between protecting communities and protecting the rights of the individual”, although the lack of a robust rights-focus is noticeable throughout, while the rhetoric of risk avoidance and public protection is to the fore. The Home Office recommended the implementation of the S and Marper v UK decision through the destruction of DNA samples after six months, whether the individual goes on to be convicted or not; by permanent retention of DNA profiles after conviction; and retention for twelve years after arrest for a serious violent or sexual offence or terrorism-related offence and six years for other offences. These periods were chosen based on the likelihood of offending by people who have been arrested and not convicted, drawing on research included in Annex C to the paper which purports to show that 52% of re-offending happens within six years and two-thirds of re-offending happens within 12 years. Read more…
HRinI’s Liz Campbell has published an article entitled ‘Responding to Gun Crime in Ireland’ in the current issue of the British Journal of Criminology. The article is available to download here (subscription required). The abstract reads:
From stereotypical views of Ireland as a peaceful and ‘low crime’ society, the media and policy makers now report the worsening of gun crime, in particular crimes of homicide committed by firearm. Despite this sometimes hyperbolic popular commentary, serious and fatal gun crime has indeed increased. In reacting through extraordinary legal measures, the Irish state adopts an unduly narrow perspective, predicated on a rational actor model; what this paper seeks to do is put forward two more profitable and persuasive means of analysis, by focusing on social deprivation and the expression of masculinity.
You can find out more about Liz on our Regular Contributors Page.
The Law Reform Commission’s Consultation Paper on Jury Service launched by the DPP earlier this week recommends removal of the discriminatory provisions in the Juries Act 1976 (as amended) which exclude persons with disabilities from jury service. The DPP was supportive of the recommendations of the Law Reform Commission in this regard. The general outline of the Consultation Paper and provisional recommendations are set out in this earlier HRiL blog post. Read more…